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The Courts GNU is Not Unix Open Source

Bruce Perens Explains That 'GPL Is A Contract' Court Case (perens.com) 179

Bruce Perens co-founded the Open Source Initiative with Eric Raymond -- and he's also Slashdot reader #3,872. Bruce Perens writes: There's been a lot of confusion about the recent Artifex v. Hancomcase, in which the court found that the GPL was an enforceable contract. I'm going to try to explain the whole thing in clear terms for the legal layman.
Two key quotes:
  • "What has changed now is that for the purposes of the court, the GPL is both a license, which can be enforced through a claim of copyright infringement, and a contract, which can be enforced through a claim of breach of contract. You can allege both in your court claim in a single case, and fall back on one if you can't prove the other. Thus, the potential to enforce the GPL in court is somewhat stronger than before this finding, and you have a case to cite rather than spending time in court arguing whether the GPL is a contract or not..."
  • "Another interesting point in the case is that the court found Artifex's claim of damages to be admissible because of their use of dual-licensing. An economic structure for remuneration of the developer by users who did not wish to comply with the GPL terms, and thus acquired a commercial license, was clearly present."

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Bruce Perens Explains That 'GPL Is A Contract' Court Case

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  • If I'm reading the summary correctly, we would be wise to officially offer dual licensing, even if we set the price so high that nobody would actually license the code under those terms?

    • You maintain your copyright in either case, offering a single or dual license option. In case you decide to pursue legal action, yes you would be wise to officially offer a dual license. An infringing party being aware of your dual license and proceeding regardless sets a baseline for damages. A jury/judge would probably take into consideration other similar software options if you, say for example, tried to set licenses at $100 billion.
      • ...A jury/judge would probably take into consideration other similar software options if you, say for example, tried to set licenses at $100 billion.

        Wait, so because of this case, I now have to reduce my licensing fees?

    • by WorBlux ( 1751716 ) on Saturday June 03, 2017 @10:21PM (#54544313)

      Not necessarily, if nobody has actually purchased the commercial license, it may not help you. Having active commercial licenses do however make it easy to prove damages. In other situations damages are going to be harder to prove, relying on prices of competing products, or the open-market cost of devlopment vs proportion of infringing use.

    • My python script (on github soon!) is going to be apache licenced, and I would suggest other software developers do the same. The original version was GPL but after spending months refactoring I will be releasing my new code under Apache. There are too many problems surrounding the GPL, and none of it has precedent set by the courts. Opinions of random attorneys don't matter, and there are plenty both ways. In fact, I've stopped buying stock in companies that release GPL'ed products because of this - t
      • by SirSlud ( 67381 )

        You could have done something with your life.

        • My life is not great, but given where I started and the lack of push for achievement by alcoholic abusive parents - by the time I was smart enough to start getting it together myself I was in no shape to compete with people you're used to seeing on slashdot. Know a lot of people who grew up as trailer trash and at 47 make 50k at a professional IT-job? Your peers went to harvard and are Sr Systems Administrators and DBAs and CPU designers. I apply patch policies to laptops. But your peers started in a sa
      • There are too many problems surrounding the GPL, and none of it has precedent set by the courts.

        This story is about the courts setting precedent which strengthens GPL. I think you need to crush a little more tinfoil on your antenna there, sport.

        • I see, so me not trusting a contract that does not have solid footing in the court system and keeps getting litigated, and using a different license is... Actually, I have no idea what you're trying to say. Crushing tinfoil on an antennaf? What, like rock salt? I don't think even you know twf you're talking about there, sport. Meanwhile I think I'll choose another open source license that has less frequent litigation challenging whether or not it's valid and move on to doing actual work.
          • Actually, I have no idea what you're trying to say. Crushing tinfoil on an antennaf? What, like rock salt? I don't think even you know twf you're talking about there, sport.

            Ahh, the trolls of youth. Move along, son.

        • This story is about the courts setting precedent which strengthens GPL. I think you need to crush a little more tinfoil on your antenna there, sport.

          Exactly that. The GPL is a license and is still a license. This court has said that it is also a contract.

          I would have said that if someone has a free choice to use software under the GPL license for free, or to pay for a different license to use the software with fewer obligations, and his actions are contrary to the GPL license, then this means that he has accepted the contract for the commercial license.

          Also, the defense here is really weak anyway because GPL is still a license, and by using the so

      • What are these problems, specifically the ones not addressed by court cases? In most cases, there haven't been court decisions because the parties settle out of court, and this is a sign of a license without major legal issues.

    • by Sun ( 104778 )

      IANAL!!!

      If I understand this correctly, if you're going the copyright route, you can collect various damages encoded in the copyright act. If, on the other hand, you are trying to go the contract route, you will need to prove your damages.

      Proving damages under contract law is difficult if you never intended to collect money. This is unlike Copyright, which has such things as statutory damages and infringer's profits. If you go for contract violation, it is easier to prove damages if you have an actual alter

  • by Anonymous Coward
    Cuz the circuit courts and/or SCOTUS are going to rip that finding to shreds.
    • And why do you imagine that to be the case? Artifex made it publicly known they are willing to allow a more permissive license than the standard copyright that is applicable in both the USA and South Korea (in this case the GPL). Hancom made it clear they were aware of Artifex's requiring a licensing fee to use the software without the GPL stipulations. Hancom then plagiarized the copyrighted code, followed by getting caught doing so.

      Car analogy time. Suppose you made publicly known that other people could

  • by DontBeAMoran ( 4843879 ) on Saturday June 03, 2017 @10:17PM (#54544305)

    Rule of acquisition #17: A contract is a contract is a contract.

  • My guess is that there is a HUGE amount of GPL code compiled into numerous closed-source applications being sold or otherwise distributed in ways that violate the GPL. Good luck finding it all...

    • "Huge amount" is not enough to be an enforceable copyright violation. There is a huge amount of GPL code. A "huge amount" could be copied under "fair use", while still being a tiny fraction of GPL code.

      This is not to say there has _not_ been a significant percentage of code copied directly and used in clear violation of the copyrights. TIVO was an agregious example of such abuse, FANTEC was caught, and BUSYBOX was the first lawsuit about GPL violations. I've encountered violations professionally of violat

    • by Zero__Kelvin ( 151819 ) on Saturday June 03, 2017 @11:09PM (#54544423) Homepage
      There is a lot of stolen equipment in pawn shops too. That doesn't mean it is fruitless to find stolen items and prosecute the thieves.
  • Looking at the initial comments, I would think you might want to weigh in on some points/questions coming up here.

    • by Anonymous Coward

      He submitted the story back on 30th May, so he probably isn't aware that Slashdot are running his story yet.

  • by Dawn Keyhotie ( 3145 ) on Saturday June 03, 2017 @11:30PM (#54544485)

    Bruce Perens .... Slashdot Newbie. /now get off my lawn.

    • You sir, I would give all my internet points, but alas this is where everything is made up and the points don't matter; also, I believe you to have a surplus by way of the inverse ID law.
  • by mark-t ( 151149 ) <markt@@@nerdflat...com> on Saturday June 03, 2017 @11:40PM (#54544519) Journal

    Copyrighted works require permission to copy them... the GPL is simply a written permission to copy the work it covers to anyone that will agree to the terms. Nothing more, and nothing less. If you agree to the terms, implicitly, by not acting in contravention to those terms, then you have permission to copy the work, but if you act in contravention of the terms then the default status of copyrighted work applies and no such permission is granted by the GPL.

    Full stop.

    • by lordlod ( 458156 ) on Sunday June 04, 2017 @01:29AM (#54544733)

      Lawyers call an agreement a contract.

      The court has just affirmed what you said, Hancom publicly stated that they had agreed to the GPL. Thus there is a contract in place.

      The contract has terms, defined by the GPL that Hancom agreed to. These terms were not complied with. Now we have a breach of contract.

      Once a breach of contract has been established the case becomes much clearer, lots of existing case law which covers how it should be dealt with.

      • by mark-t ( 151149 )
        If the terms were not complied with, then they weren't agreed to, regardless of any claiim to the contrary, since the GPL grants permission to copy only to people that do not act in contravention of its terms.
  • Since I do not wish to have a contract with random people on the Internet that download my software, then I should probably stop releasing my software as GPL at this point.

    • by lordlod ( 458156 ) on Sunday June 04, 2017 @03:28AM (#54544999)

      The logic of the court case isn't specific to the GPL, any licence you choose to distribute source with, or even a straight binary distribution would probably involve the creation of an implicit contract.

      You shouldn't be scared of contracts, they are just a way for lawyers to formalise agreements. Buying a coffee - a contract. Buying a bus ticket - a contract. Agreeing to terms and conditions you never bothered to read - a contract.

    • Since I do not wish to have a contract with random people on the Internet that download my software, then I should probably stop releasing my software as GPL at this point.

      The contract doesn't obligate you to do anything (you've held up your end of the contract already, by producing something and distributing it) but it does obligate them to do something, so there is no drawback to entering into such a contract.

      • Just to be safe, I am releasing everyone from the contract. And I refuse further participation in the contracts.

        That will make things a bit complicated for me on LKML though.

  • Is a software licence a contract? This question is easy to answer, because YOU can answer it and you cannot do the wrong thing.

    Two options.
    1) You decide it is. You use the software and follow the terms of the licence
    2) You decide it is not. Then you're not allowed to use the software, as its copyright protected and you have absolutely no permission to use it, while there is no binding contract which allows you to use it. So you don't use it.

    You cannot do the wrong thing.

    • Re:This is easy (Score:4, Insightful)

      by amorsen ( 7485 ) <benny+slashdot@amorsen.dk> on Sunday June 04, 2017 @06:51PM (#54548227)

      You decide it is not. Then you're not allowed to use the software, as its copyright protected and you have absolutely no permission to use it

      USING software was not considered an act that could infringe on copyright, when the GPL was originally created. It was argued that any copies made for the purposes of using the software were merely incidental and didn't count for copyright purposes -- they were merely mechanical acts. Even today, few argue that a core router at an ISP needs to obtain a copyright license to transfer bits of Mr Robot from Netflix's servers to the TV.

      Back then, you could grab all of FSF's software from someone and use them to your heart's content, not giving a flying fuck about the GPL or any other license. The license was only a concern for whoever gave the software to you, it would only concern you if you tried to pass the software to others (and then only if you didn't simply follow the standard rules for second hand software).

      Today the situation is clear as mud. Software licenses can say pretty much anything they want, and they apply to use, not just to copying. Except when they don't.

      • by allo ( 1728082 )

        Make it more easy: Without a licence, you do not have rights and it's just piracy. Using and especially copying. With a licence (accepted by you), some rights are granted, when you accept some conditions.
        That's the whole point why dual licencing is easy. The licence you're not using when forking the project doesn't affect your usage at all, as you do not need to accept it.

        • by amorsen ( 7485 )

          Without a licence, you do not have rights and it's just piracy.

          Easy, but wrong. Not very helpful. For instance, in the US you generally have the right to sell the software to someone else, second hand, even though the license says you can't.

          • by allo ( 1728082 )

            You need to have a licence first. And the next person is bound to the licence. Only the term "you cannot sell" is invalid, but if you do not accept the licence at all, you do not have any right to use the code. That's a big problem with people just putting code on github without adding a licence, because it's totally unclear how you're allowed to use it. That was the reason, that github added the feature to initialize a repo with a licence file.

      • Current US copyright law explicitly allows all copying necessary for execution of a lawfully acquired piece of software. Any restrictions on use come from contracts, and US courts have been (in my opinion) far too accepting of shrink-wrap contracts, which look to me like a way to put additional restrictions on a purchaser after the vendor has gotten the money.

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